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Margaret Sullivan, The New York Times’ public editor, has written a thoughtful and important piece criticizing the way the newspaper complied with an Israeli-imposed gag order on the case of Majd Kayyal.

But it leaves some important questions unanswered about the Times’ apparent eagerness to let Israeli censors set its news agenda.

Kayyal, a 23-year old journalist and activist and a Palestinian citizen of Israel, was detained incommunicado for five days by Israel’s Shin Bet secret police without access to a lawyer, following a return from a professional trip to Lebanon.

While the Times and other major media remained silent, The Electronic Intifada exclusively published the classified court transcript ratifying his detention and silencing the media.

After the gag order was lifted yesterday, following an appeal by the legal advocacy group Adalah, The New York Times finally published an article on Kayyal, which links to The Electronic Intifada’s coverage.

Gagged

Sullivan’s piece makes a number of important points. First, Jodi Rudoren, the Times’ Jerusalem bureau chief, considers herself to be bound by Israeli gag orders:

The Times is “indeed, bound by gag orders,” Ms. Rudoren said. She said that the situation is analogous to abiding by traffic rules or any other laws of the land, and that two of her predecessors in the bureau chief position affirmed to her this week that The Times has been subject to gag orders in the past. (An earlier version of this post said that The Times agrees to abide by gag orders as a prerequisite for press credentials, but Ms. Rudoren told me today that that is not the case, although it was her initial understanding.)

Jodi Rudoren, first accused of knowing nothing about Israel, then of going native.

Rudoren’s confusion and her willingness to obey authority without asking questions are disturbing. And Sullivan’s piece also points out other contradictions which undermine Rudoren’s categorical claim that she must comply with government censorship. Sullivan writes:

I asked The Times’s newsroom lawyer, David McCraw, about the situation. He told me that he was consulted by Times journalists this week as they considered publishing an article about Mr. Kayyal’s arrest. Although the situation is somewhat murky, he said, “the general understanding among legal counsel in other countries is that local law would apply to foreign media.” Similar issues arise when America news media organizations cover the British courts, he said. But the restriction in Israel has not been tested, he said.

“I’ve never seen us actually challenge it,” Mr. McCraw said, because no situation has arisen that would force the issue.

Two ranking editors at The Times – the managing editor, Dean Baquet, and an assistant managing editor, Susan Chira (who was the foreign editor for eight years) – told me that they were unaware of The Times ever agreeing to abide by gag orders in Israel.

Transparency

Sullivan also points to The Electronic Intifada’s coverage of Kayyal’s case and cites criticism from me and Yousef Munayyer:

Ali Abunimah said in an email that “readers have a right to know when NYT is complying with government-imposed censorship.”

And Yousef Munayyer, executive director of the Jerusalem Fund and the Palestine Center, wrote to me that this seems to go against journalistic principles: “It would seem to me that a story that a state specifically wants to prevent from seeing the light of day is something that should make a journalist’s mouth water. That’s what journalism is all about, isn’t it?”

Sullivan largely agrees with our points:

Waiting a day or two until the gag order was lifted may have done no great harm. Still, I find it troubling that The Times is in the position of waiting for government clearance before deciding to publish.

If the law makes that situation unavoidable, a little transparency would go a long way. Either in a sentence within an article or a short editor’s note, The Times can, and should, tell its readers what’s going on.

And so does the foreign editor Joseph Kahn, who told Sullivan that “in general he agreed with the idea of keeping Times readers informed in that way. ‘It makes sense to do that,’ he said.”

Unconvincing

Sullivan’s article leaves a number of questions that still need answers:

Why does Rudoren believe she is bound by gag orders when two senior editors said they were unaware of the newspaper ever agreeing to be bound by such gag orders?

Contrary to the claim that Israeli gags have never been challenged, I found at least one instance where the Times does indeed appear to openly defy an Israeli gag order.

A May 2008 article by Alison Leigh Cowan about corruption investigations into then Israeli Prime Minister Ehud Olmert states: “Police have imposed a strict gag order that forbids publication of information about the case in Israel.”

Yet the article goes on to provide Times readers with all the censored information, including the names of witnesses and suspects in the case that the gag order forbid media from naming.

Not all gags are equal

Sullivan’s piece mentions that the Times complies with gag orders imposed by British courts.

But there’s an important difference: while one may debate their merits, the kinds of gag orders typically applied to criminal trials in British (and Canadian) courts are intended to protect the rights of a defendant by ensuring that sensational or partial media coverage does not taint a jury.

One can argue plausibly that the public interest in impartial justice outweighs at least for the period of a trial the public’s right to know certain facts.

Nevertheless, The New York Times itself strongly criticized such gag orders in Canada twenty years ago.

But the Israeli gag order in the case of Majd Kayyal was intended to do the opposite: its purpose and effect was not to protect Kayyal, but rather to protect the Shin Bet’s ability to deprive him of fundamental rights and to do so in near total darkness. Journalists should challenge, not meekly comply with such orders.

Gagged in New York?

Even if it is true – as Rudoren says – that foreign correspondents based in occupied Jerusalem or present-day Israel must agree to abide by gags, there’s no reason why someone in New York could not have written a report on the case.

Ultimately, the Times report on Kayyal contained no information that required a physical presence in Jerusalem (it included a phone interview with Kayyal – and there are telephones in New York).

Indeed, last year, the Times blog The Lede reported on Israel’s so-called “Prisoner X” – the Australian citizen Ben Zygier who died in Israeli custody – despite a strict Israeli gag order that forbade even mentioning that the gag existed.

The Lede’s report appears to have been published before the gag was partially lifted.

(In an update to her post, Sullivan points out another instance where the Times did something similar in order to evade a gag in 2010.)

Unwilling to challenge

One must ask what would happen if The New York Times had challenged the Israeli gag in the Kayyal case. Would Israel be prepared to expel Rudoren? Would it shut down the Times Jerusalem bureau?

It’s hard to imagine an Israeli government – even one as extreme and intolerant as the present one – being prepared to absorb the embarrassment such an attack on the international press would entail.

Still, the Times should be prepared to risk it and find out.

But that would take a very different kind of Times bureau – one prepared to challenge Israeli government actions rather than serve as Israel’s chief explainer and apologist. I’m not holding my breath.

Margaret Sullivan on the front cover of Medill magazine, winter 2013, when she became the first woman to become Public Editor (akin to the Guardian’s Readers’ editor) at the New York Times, 2013.

The Times published an article Thursday afternoon about an Arab citizen of Israel – a 23-year-old journalist and Palestinian rights advocate – who was detained by Israeli authorities last weekend.

The man, Majd Kayyal, was not allowed a lawyer until Wednesday night, and he was interrogated for five days on suspicion that he was being recruited by a “hostile organization” after he visited Lebanon. He was released on Thursday but ordered to be kept under house arrest.

The Times article mentions a court-imposed gag order that was lifted on Thursday. What it doesn’t mention is that The Times, too, is subject to such gag orders.

According to its bureau chief in Jerusalem, Jodi Rudoren, that is true.

The Times is “indeed, bound by gag orders,” Ms. Rudoren said. She said that the situation is analogous to abiding by traffic rules or any other laws of the land, and that two of her predecessors in the bureau chief position affirmed to her this week that The Times has been subject to gag orders in the past. (An earlier version of this post said that The Times agrees to abide by gag orders as a prerequisite for press credentials, but Ms. Rudoren told me today that that is not the case, although it was her initial understanding.)

I asked The Times’s newsroom lawyer, David McCraw, about the situation. He told me that he was consulted by Times journalists this week as they considered publishing an article about Mr. Kayyal’s arrest. Although the situation is somewhat murky, he said, “the general understanding among legal counsel in other countries is that local law would apply to foreign media.” Similar issues arise when America news media organizations cover the British courts, he said.

But the restriction in Israel has not been tested, he said.

“I’ve never seen us actually challenge it,” Mr. McCraw said, because no situation has arisen that would force the issue.

Managing editor Dean Bacquet says he was never aware of the NY Times accepting a gag order from Israel.

Two ranking editors at The Times – the managing editor, Dean Baquet, and an assistant managing editor, Susan Chira (who was the foreign editor for eight years) – told me that they were unaware of The Times ever agreeing to abide by gag orders in Israel.

Meanwhile, an online publication called The Electronic Intifada published a number of articles about Mr. Kayyal’s detention over the past several days.

The author of those articles, Ali Abunimah, said in an email that “readers have a right to know when NYT is complying with government-imposed censorship.”

And Yousef Munayyer, executive director of the Jerusalem Fund and the Palestine Center, wrote to me that this seems to go against journalistic principles: “It would seem to me that a story that a state specifically wants to prevent from seeing the light of day is something that should make a journalist’s mouth water. That’s what journalism is all about, isn’t it?”

If there had been a major story and a longstanding gag order, Ms. Rudoren said, she is convinced that The Times would find a way to publish, despite the legal restriction. That could take the form of writing a story from New York or Washington, rather than from Israel. (This story from 2010, which was published without a byline, or a dateline indicating where it was written, appears to be an example of that.)

In the case of Thursday’s article about Mr. Kayyal, Ms. Rudoren said, “We probably would have written a modest story or brief about this arrest earlier if there had not been a gag order.”

Waiting a day or two until the gag order was lifted may have done no great harm. Still, I find it troubling that The Times is in the position of waiting for government clearance before deciding to publish.

If the law makes that situation unavoidable, a little transparency would go a long way. Either in a sentence within an article or a short editor’s note, The Times can, and should, tell its readers what’s going on.

The foreign editor, Joseph Kahn, told me that he was not involved in the editing of this article but that in general he agreed with the idea of keeping Times readers informed in that way. “It makes sense to do that,” he said.

There’s a fascinating drama playing out at the NY Times thanks to public editor, Margaret Sullivan. Sometime after the Shin Bet removed the gag order on the reporting of the Majd Kayyal case, Jodi Rudoren appointed her beat reporter, Isabel Kershner to write about the story. She did a rather decent job and even interviewed Kayyal to add his perspective to the story. I was rather surprised by this element, because the Times rarely interviews Palestinians who aren’t considered political leaders. It almost never interviews those accused of security offenses.

Now, after Ali Abunimah complained about the Times’ collaboration with the Israeli security apparatus on gag orders, Sullivan’s column was published excoriating Rudoren for abiding by the gag order. Thus it becomes more clear why Kershner’s reporting was so careful and comprehensive. Undoubtedly, Rudoren knew she was under scrutiny and had to ensure the story would be fully reported and balanced.

I’m rather shocked by the entire brouhaha because it’s obvious to anyone with half a brain who follows Israel reporting by domestic Israeli and foreign media, that they all abide by gag orders. I can’t tell you the number of times I’ve approached reporters for both the Times and other foreign papers with stories under gag, asking if there was any way they or a non-local reporter could cover the story. Specifically, in one case where I offered a gagged story to a U.S.-based NYT reporter he specifically asked me if I’d brought the story to Rudoren’s attention. Which seemed either a naive response or a way of getting himself off the hook. Of course I wouldn’t offer the story to Rudoren because she wouldn’t or couldn’t report it.

At any rate, all reporters inside Israel are bound by gag orders. Technically, as a non-Israeli you are not bound by a gag, but since you are physically within Israel’s jurisdiction, both the censor and courts consider you subject to Israeli gags. If a locally-based foreign reporter violated a gag by writing a story, not only could their own personal credentials be yanked, but the existence of an entire bureau could be jeopardized.

But why wouldn’t a paper like the NYT assign a non-local reporter to cover such stories? After all, there would be no jeopardy for such a reporter since he or she is not based in Israel. However, despite the separation between the Israel-based and U.S.-based reporters, the Israeli security apparatus would take such a violation as a breach of domestic journalistic protocol. It could either refuse to renew the bureau chief’s credential or it could make the bureau persona non grata and refuse to cooperate on any stories.

All this is written from the perspective of the Israeli government and the news agencies.

But what would happen if a number of the foreign bureaus united to announce they would refuse to abide by gags in future. They wouldn’t have their local staff write these stories, but they’d be written by foreign-based reporters. They could even say they wouldn’t rely on any locally-based reporting. This of course would still anger the government, but what could they do if there was a united front presented by major foreign presses like the Times, Washington Post, Guardian, etc.?

As anyone who reads this blog knows, my major beef with the Israeli and foreign media is that they’re too quiescent regarding authority. They view themselves more as conduits for official policy statements than as investigative reporters breaking stories. While the Times staff does some feature writing that has some interest, they almost never do original investigative stories which break new ground. So given this level of collaboration and back-scratching it seems unlikely the foreign press would stand up for such a principle. Though it’s wonderful for Sullivan to hold Rudoren’s feet to the fire.

After all, what Rudoren and the Times are practicing is a form of self-censorship. They won’t report a story they could report because they know it will inconvenience their professional lives. But if the Times had followed the same rule regarding the Pentagon Papers, it would never have published them. If the Times China bureau followed the same rule it would never have reported the amazing Pulitzer Prize-winning stories of high-level Chinese corruption, which caused a huge uproar and the expulsion from the country of one of the NYT reporters who wrote it. In that case, the fear of repercussions didn’t deter the Times. What’s the difference between Israel and China? The difference is the Special Relationship. Times reporters simply will not take an adversarial position to Israeli authorities.

I was tickled by Jodi Rudoren’s explanation of her choice to abide by gag orders as a simple agreement to abide by the local laws of the land, just as you abide by traffic laws. As if issues like press freedom and censorship are as insignificant as jaywalking or speeding. This shows not only Rudoren’s faulty grasp of the big issues involved, it shows her absolute buy-in to her role of journalistic cipher for the national security state. She spoke hopelessly in this passage quoted by Sullivan:

If there had been a major story and a longstanding gag order, Ms. Rudoren said, she is convinced that The Times would find a way to publish, despite the legal restriction.

Indeed there have been many such longstanding gag orders which the Times did not violate including the Anat Kamm and Ben Zygier stories. Especially in the former case, the Times had no excuse since I’d been reporting the story for months while the gag was in place. The first U.S. reporter who broke that story was not Jodi Rudoren or Ethan Bronner her predecessor, but Judith Miller, who reported it for the Daily Beast and FoxNews.

It was also delightful to read the hypocritical statement by the managing editor that he “wasn’t aware” that the Times abided by Israeli gag orders. Of course you weren’t aware if you chose to make yourself unaware.

You’ve heard me here excoriate the media who have finally reported this story, for forgetting that the only reason they are reporting it is because of the work of blogs like this one (and Electronic Intifada, who wrote its first report a day after mine) which first broke it. Zvi Barel, writing in Haaretz never mentions the international campaign to free Kayyal. Even Phil Weiss in sloppy fashion credits Ali Abunimah with “repeatedly scooping” the Times with its story. My thanks to a number of those readers in the comment thread who linked to my reporting and offered credit. Weiss also credits Matt Lee’s questioning of the State Department about Kayyal incarceration as instrumental in raising the visibility of the issue. If he read this blog, he’d know that I tweeted such a request to Lee, who graciously acceded to it. Abunimah himself didn’t link to my own original report until I’d tweeted to him about the omission. He was so defensive about my tweet and our subsequent debate that he’s declared me persona non grata. Which I suppose earns me excommunication from the anti-Zionist left caucus, another branch of which has drummed me out of the corps for being a racist.

All of which is my way of saying that while the Israeli national security state has much to answer for in its egregious violation of press freedom, the progressive left media often does a less than stellar job at research and reporting these stories as well. Just as the Rudorens and Kershners of the journalist world rely on their pre-selected group of analysts and talking points in doing their reporting, so the left often reports stories according to its own prepared script. Though outlets like Electronic Intifada and Mondoweiss add a great deal to our knowledge of the issues, their own prejudices and omissions are evident, but often unacknowledged.

My own quarrels with both blogs don’t prevent me from crediting their work. I wish they’d return the favor.

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